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Dionysiou v Olivieri (2011 NY Slip Op 51097(U))
[*1]


Decided on June 21, 2011
Supreme Court, Queens County

34006/2009
Charles J. Markey, J.
Plaintiff Constantine Dionysiou ("Dionysiou"), as purchaser, and defendant James Olivieri ("Olivieri"), as seller, entered into a contract dated May 19, 2009, for the sale of commercial real property known as 100-12 Northern Boulevard, Corona, New York. Upon executing the contract, plaintiff paid a down payment of $25,000, held in escrow by defendant Cooper, Paroff, Cooper & Cook, a law firm in Queens County. The contract contained a mortgage contingency clause set forth as paragraph 42 of the "second rider," providing that the contract of sale was contingent on the plaintiff's ability to obtain a written mortgage commitment in the amount of $250,000.00 for a term
file:///C|/Users/Peter/Desktop/NY/1/2011_51097.htm[4/21/2013 12:22:41 PM] Dionysiou v Olivieri (2011 NY Slip Op 51097(U))
of 30 years or any [*2]lower amount that purchaser was willing to accept, within 45 days of the date of the agreement. Plaintiff was required to "promptly and diligently" apply for the mortgage loan.
The mortgage contingency clause further provided:
If such a commitment is not issued within 45 days after the date of this contract, this contract shall continue in full force and effect (but no longer subject to the contingency provided herein) unless Purchaser delivers to Sellers, within five business days after the expiration of said period, a written notice that he was unable to procure such commitment and therefor elects to cancel this contract. Sellers may extend said contingency period by written notice to Purchaser. If this contract is canceled as provided above, Sellers shall direct Escrow Agent to refund the downpayment [sic] to Purchaser, without interest, whereupon this contract shall terminate and neither party shall have any further claim against the other.
On May 23, 2009, plaintiff approached John Michaels, of Truen & Michaels, a mortgage brokerage company, for the purpose of obtaining a mortgage in connection with the subject contract of sale. Prior to the expiration of the 45 day period, plaintiff, in a letter dated June 30, 2009, requested a 30 day extension of the contingency clause, which the seller granted. Plaintiff thereafter made written requests to extend the 30 day period in letters dated dated July 28, 2009, and August 28, 2009, and the seller consented to those extensions. Plaintiff, in a letter dated October 2, 2009, requested another 30 day extension, which the seller did not grant. This letter stated that if the request for an extension was rejected, then the purchaser elected to cancel the contract and demanded the return of the down payment.
Olivieri's counsel, in a letter dated November 4, 2009, and addressed to Dionysiou's counsel, proposed, on behalf of the seller, to proceed with the sale and offered a purchase money mortgage of $200,000.00 for a period of 5 years, with interest at 12%. Counsel stated that in the event that the purchaser did not either obtain a mortgage or accept this offer, he had been instructed not to return the down payment.
Dionysiou's counsel, in a letter dated November 11, 2009, stated that his client had elected to cancel the contract on October 2, 2009, and demanded the return of the down payment. He asserted that the seller had acted in bad faith and breached the contract by refusing to return the down payment and offering the purchase money mortgage.
file:///C|/Users/Peter/Desktop/NY/1/2011_51097.htm[4/21/2013 12:22:41 PM] Dionysiou v Olivieri (2011 NY Slip Op 51097(U))
Plaintiff commenced this action on December 18, 2009, and asserts alleged causes of action to foreclose on a vendee's lien, for conversion, breach of contract, breach of fiduciary duty, unjust enrichment, "bad faith," "willful disregard," "loss of economic [*3]opportunities," and for attorney's fees and costs. Defendants have served an answer and interposed a counterclaim for damages for breach of contract and for attorney's fees.
Plaintiff now moves for an order striking the defendants' answer and granting summary judgment in his favor directing defendants to return the $25,000 down payment.
Upon the foregoing papers, the plaintiff has failed to establish, prima facie, his entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Contrary to plaintiff's contention, triable issues of fact exist as to whether he fulfilled his contractual obligations to exercise diligent efforts to obtain to secure mortgage financing (see, Maor v Seamon, 79 AD3d 1105 [2nd Dept. 2010]; Samson v Sapphire Capital, Inc., 74 AD3d 1172, 1173 [2nd Dept. 2010]; Balkhiyev v Sanders, 71 AD3d 611, 612-613[2nd Dept. 2010]; Zheng v Evans, 63 AD3d 791 [2nd Dept. 2009]; Buxton v Streany, 68 AD3d 1036 [2nd Dept. 2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2nd Dept. 2008]; Garber v Giordano, 16 AD3d 454 [2nd Dept. 2005]; Katz v Simon, 216 AD2d 270 [2nd Dept. 1995]; Bucciero v Li, 191 AD2d 887 [3rd Dept. 1993]; Tsang v Romano, 31 Misc 3d 1202(A), 2011 NY Slip Op 50468[U] [Sup Ct Kings County 2011] [Battaglia, J.]).
Accordingly, plaintiff's motion to strike defendant's answer and for summary judgment is denied.
The foregoing constitutes the decision, opinion, and order of the Court.
J.S.C.
Dated: June 21, 2011

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